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1997 




Workplace Safety and Insurance Appeals Tribunal 

Tribunal d'appel de la securite professionnelle et 
de la assurance contre les accidents du travail 



Ontario 



Oio 



1997 



1997 



1997 



ANNUAL 
REPORT 



1997 



1997 



1997 



1997 



Digitized by the Internet Archive 

in 2013 



http://archive.org/details/annualreport1997onta_0 



ANNUAL 

REP OR T 

1997 



Workplace Safety and Insurance Appeals Tribunal 

505 University Ave., 7th Floor 

Toronto, Ontario M5G 1X4 

ISSN: 1480-5707 
©1998 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



CONTENTS 



INTRODUCTION v 

REPORT OF THE TRIBUNAL CHAIR 

TRANSITIONS 1 

TRIBUNAL PERFORMANCE 2 

REPRESENTATIVES' CODE OF CONDUCT 3 

HIGHLIGHTS OF THE 1997 CASE ISSUES 4 

Re-employment 4 

Penalties under the Re-employment Provisions 5 

Future Economic Loss Awards and Supplements 6 

Non-economic Loss Awards 7 

Transitional Supplements 8 

Occupational Stress 10 

Occupational Disease 11 

Earnings Basis 12 

Experience Rating of Employers (NEER and CAD-7) 13 

Other Employer Issues 14 

Right to Sue Applications 15 

Miscellaneous 16 

APPLICATIONS FOR JUDICIAL REVIEW 17 

Judicial Reviews Outstanding 18 

OTHER COURT MATTERS 18 

OMBUDSMAN COMPLAINTS 18 

THE TRIBUNAL REPORT 

VICE-CHAIRS, MEMBERS AND STAFF 21 

OFFICE OF COUNSEL TO THE CHAIR 21 

TRIBUNAL COUNSEL OFFICE 22 

Intake 22 

Pre-hearing Legal Workers 22 

Post-hearing Legal Workers 23 

Lawyers 23 

Medical Liaison Office 23 



Ul 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



MLO and the Medical Component 25 

Procedural Changes 28 

SCHEDULING 29 

Recording of Regional Hearings 29 

Practice Direction: Adjournments and Withdrawals 30 

INFORMATION DEPARTMENT 30 

Library Services 30 

Publications 31 

STATISTICAL SUMMARY 32 

Cases Received 33 

Case Dispositions 33 

Remaining Inventory 34 

Comparative Statistics for 1 997 Hearings and Decision Productivity .34 

FINANCIAL MATTERS 35 

APPENDIX A 

VICE-CHAIRS AND MEMBERS IN 1997 45 

VICE-CHAIRS AND MEMBERS - REAPPOINTMENTS 46 

NEW APPOINTMENTS DURING 1997 47 

SENIOR STAFF 48 

MEDICAL COUNSELLORS 48 

APPENDIX B 

AUDITORS' REPORT AND FINANCIAL STATEMENTS 49 



IV 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Introduction 



The Workplace Safety and Insurance Appeals Tribunal 
("WSIAT" or "the Tribunal") considers appeals from final 
decisions of the Workplace Safety and Insurance Board ("WSIB" 
or "the Board") under the Workplace Safety and Insurance Act, 
1997 ("the Act"). The Act, replacing the Workers' Compensation 
Act, came into force January 1, 1998. The Tribunal is a separate 
and independent adjudicative institution. It was formerly 
known as the Workers' Compensation Appeals Tribunal, until 
the name was changed pursuant to section 173 of the Act. 

This volume contains the Tribunal's Annual Report to the 
Minister of Labour and to the Tribunal's various constituencies, 
together with a Report of the Tribunal Chair. It is primarily a 
report on the Tribunal's operations for fiscal year 1997 and 
comments on some matters which may be of special interest or 
concern to the Minister or the Tribunal's constituencies. 

The Tribunal Report focuses on Tribunal activities, financial 
affairs and the evolving administrative policies and practices. 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



Report of the 
Tribunal Chair 



TRANSITIONS 



Nineteen ninety-seven was a year of change for the Appeals 
Tribunal. In July, the organization said farewell to Ron Ellis, 
Tribunal Chair since the Tribunal's inception in 1985. His vision 
shaped the organization and his commitment to providing a 
high level of service continued unabated for 12 years. 

From the outset, Mr. Ellis intended to establish a quasi- 
judicial tribunal embodying the principles of fair decision- 
making, informed legal analysis of complex issues, and 
comprehensible and accessible service for parties within the 
system. He sought knowledgeable adjudicators from diverse 
backgrounds to reflect a wide range of experience and 
perspectives. Mr. Ellis encouraged a tripartite system in which 
worker and employer Members, together with the Vice-Chairs, 
attempted to develop a consensus-based system producing fair 
and well-reasoned decisions. He established the Tribunal 
Counsel Office ("TCO") to provide the appropriate legal 
preparation. His imprimatur on the 1997 Tribunal is 
unmistakable. 

In addition to making structural contributions, Mr. Ellis 
served as a mentor and friend who was dedicated to the sharing 
of ideas for the betterment of the organization. He also 
solidified his concept of the Tribunal as a model for quasi- 
judicial decision-making, through the hearings he held and 
decisions he produced. Those who are knowledgeable in 
compensation law are well aware of his contribution. Decision 
No. 915 is a monumental work - in all senses of the word. His 
decisions demonstrate a careful and considered approach to 
issues, and his detailed analyses set the bar for the other 
Tribunal adjudicators. The Tribunal continues to reflect his 
creative vision. 

Anticipation of Bill 99 (the new Workplace Safety and 
Insurance Act, 1997) becoming law in January 1998, led to 
restructuring and a reduction in the complement of full-time 
employer and worker Members in 1997. While the Tribunal 
reduced its full-time roster, a number of experienced and valued 
members were appointed in a part-time capacity and continue 
to provide valuable adjudicative assistance. Similarly, a number 
of full-time Vice-Chairs made the transition to part-time, 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



allowing them to pursue new avenues of career development while providing the 
Tribunal with much appreciated continuity and quality adjudication. Three new 
Vice-Chairs were appointed, who bring new and interesting perspectives to the 
institution. The Tribunal has also added resources to TCO in an ongoing attempt to 
improve service to the parties and to facilitate case management strategies. 

Towards the end of the year, a Ministry cost-benefit analysis concluded that the 
Tribunal should remain in its present location - a decision which now allows the 
Tribunal to proceed with further restructuring, including the incorporation of some 
shared facilities with one or more other agencies. 

All in all, an eventful year. 

TRIBUNAL PERFORMANCE 



I am pleased to report that, in a year of flux and change, the organization 
maintained its professional comportment and, indeed, increased its productivity in 
almost every measurable area. This is especially noteworthy as cases continued to arise 
at the Tribunal at record levels. 

As noted in the Annual Report 1995 and 1996, the 1996 figure of 3,604 new cases 
represented a 64% increase over the 1994 figure. In 1997, TCO received 5,107 cases, an 
increase of 42% beyond last year's record numbers. 

In 1996, the Tribunal disposed of 2,512 cases, whereas this last year the figure was 
3,070, a 22% improvement in productivity. Similarly, we managed a 20% increase in 
decisions released this year, compared to 1996. In 1997, the number of hearings held 
climbed to 30% over 1996 levels. 

In the first quarter of 1998, the numbers continued to escalate. Between January 1 
and March 31, the Tribunal received 3,422 new cases, while pushing dispositions up to 
2,368. The first quarter showed a 10% increase in the number of hearings held, while 
producing a 35% increase in decisions released compared to 1997. 

Over the long term, this flood of appeals should emerge as an anomaly. However, 
for the next two years (given the likely impact of time limits in the new legislation and 
ongoing restructuring at the Workplace Safety and Insurance Board) a "deluge" of 
appeals will be the norm. The consequences for the Tribunal cannot be understated. 

To cope effectively with the rise in incoming cases, we must continue to improve 
productivity. In our view, we must accomplish this goal while maintaining accessible 
service and providing quality decisions. The Tribunal anticipates continuing to explore 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



alternative methods of case resolution. Our recent experiment in fast-tracking and 
grouping written hearings resulted in significant production increases. We anticipate 
expanding this approach to other areas in 1998. 

At a certain point, the Tribunal's ability to increase productivity with existing 
resources will plateau. Realistically, the people who hear cases and issue decisions - 
even when employing innovative and alternative methods - can only do so much 
without sacrificing either the quality of the hearing process or that of the decision itself. 
The public is not served by increased productivity if it comes at the expense of service. 
Client satisfaction - in terms of parties' perceptions of a fair and impartial consideration 
of the issues taking place - is important in any performance measure of the Tribunal's 
activities. 

The Tribunal recognizes that its production goals must be accomplished on a 
cost-effective basis. We have undertaken to add more part-time Vice-Chairs to our 
roster, as a fiscally responsible means of increasing output and in recognition that the 
significantly increased caseload from the Workplace Safety and Insurance Board should 
not, indefinitely, continue to escalate. 

While it remains to be seen how we will perform for the remainder of 1998, given 
our recent success, we are confident that the percentage of cases processed by the 
Tribunal will continue to increase throughout the year. 

Quite possibly as a result of the increased volume, there was no measurable change 
in our turnaround time for releasing decisions and, with the increased numbers 
expected for this year, it may not be reasonable to expect rapid improvement in this 
area; however, the additional resources will ensure that some improvement does occur. 



REPRESENTATIVES' CODE OF CONDUCT 



As noted in the Annual Report 1995 and 1996, the varying quality of independent 
consultants (who, unlike lawyers, are not regulated in any meaningful way) made a 
Code of Conduct a desirable tool to promote effective, fair and cost-effective 
adjudication. The Tribunal has developed a Code in a readable and accessible form. It is 
important to stress that the aim of this Code is not to deter non-lawyers from 
representing either workers or employers but, rather, to ensure that basic standards of 
knowledge, professional comportment and fairness are maintained. The Tribunal 
represents the final level of appeal in the workplace safety and insurance system. The 
public and the parties have a right to expect that the Tribunal's processes and 
decision-making obligations will not be obstructed or delayed by uninformed, abusive 
or incompetent representatives. It is hoped that the Code will provide a balanced means 
to achieve this objective. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



HIGHLIGHTS OF THE 1997 CASE ISSUES 



This section highlights some legal, factual and medical issues dealt with by Tribunal 
decisions during the reporting period. It reflects a selection of issues which seem likely 
to be of particular interest, represented in a random order. 

During 1997, the Workers' Compensation Reform Act, 1997, S.0. 1997, c. 16 was 
enacted; however, the new Act did not come into force until January 1, 1998. This Act is 
commonly referred to as Bill 99. Schedule A of Bill 99 enacted the Workplace Safety and 
Insurance Act, 1997, which creates a scheme of workplace safety and insurance for 
accidents occurring after December 31, 1997. Pursuant to section 102, the pre-1997 
Workers' Compensation Act as amended by Bill 99, continues to apply with respect to 
pre-1998 injuries. The pre-1997 Act, in turn, continues the pre-1985 Act (for accidents 
occurring before the first day of April, 1985) and the pre-1989 Act (for accidents 
occurring on or after the first day of April, 1985 and before the second day of 
January, 1990). Thus, for example, the pension scheme which applies to permanent 
disability under the pre-1985 Act continues in effect for pre-1985 injuries. 

During 1997, the Tribunal adjudicated cases pursuant to the pre-1997 Workers' 
Compensation Act, the pre-1989 Act and the pre-1985 Act. Cases decided during this 
period will continue to have relevance under the new legislation with respect to those 
provisions of the earlier Acts which are continued. One important distinction between 
Bill 99 and the earlier Acts, is that Bill 99 explicitly requires the Tribunal to apply Board 
policy and creates a defined policy-audit function for the Tribunal. Another difference is 
that vocational rehabilitation is replaced by labour market re-entry plans. 



Re-employment 

Section 54 of the pre-1997 Act created a new obligation for specified employers to 
offer to re-employ injured workers. The Board has a discretion to impose a penalty on 
the employer and/ or to award benefits to a worker for up to one year if the employer 
breaches this obligation. 

Previous annual reports noted an area of continuing difference between the Board 
and the Tribunal over the test an employer must meet to show that it has discharged its 
obligations under section 54. Tribunal cases have held that the intent of section 54 is to 
place an injured worker in the position the worker would have been in if the workplace 
accident had not occurred. The general Tribunal test is whether the employer displayed 
"anti-injured-worker animus", that is, whether the reasons for termination related to the 
workplace injury or constituted an attempt to avoid section 54. The wording in Bill 99 
adopts the Tribunal's approach. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Tribunal cases continued to take this approach during the current reporting period. 
Thus, an employer was found not to have breached its re-employment obligation when 
it did not rehire a worker who had received notice of lay-off prior to his accident. The 
employment at the time of the accident was limited to a definite term and the 
occurrence of the accident did not change the employment to an indefinite term. See 
Decision No. 795/97 (1997), 43 W.S.I. A.T.R. 285. Section 54 requires an employer to offer 
available, sustainable work. Thus, an employer was not required to offer a special 
"weekend warrior" shift which was implemented as a short-term measure to deal with 
the fluctuating needs of operating on a "just-in-time" basis. See Decision No. 464/96 
(1997), 42 W.CA.T.R. 124. 

Decision No. 872/96 (1997), 44 W.S.I. A.T.R. 81, contains an interesting explanation of 
the interaction between the duty to accommodate under section 54 and that under the 
Ontario Human Rights Code. When a non-compensable condition is accommodated by an 
employer prior to the workplace injury, this accommodation will be factored into the 
accommodation required after the injury. However, if there was no accommodation for 
the non-compensable condition prior to the workplace injury, section 54 does not 
require a non-compensable condition to be accommodated. Human rights concerns 
unconnected with a compensable injury are outside the Tribunal's jurisdiction. 

Decision No. 647/9512 (1997), 42 W.CA.T.R. 8, considered a constitutional argument 
that the section 54 re-employment obligation, which is provincial legislation, could not 
apply to a federal undertaking regulated by the Government Employees' Compensation Act, 
R.S.C. 1985, c. G-5. The Panel concluded that the return to work provisions were a 
meaningful part of the compensation available to injured workers in Ontario and were 
applicable to a federal undertaking even though they might have some impact on that 
undertaking, as long as the provisions were in harmony with the purpose of the broader 
legislation and did not substantially affect the essential federal aspect of the federal 
undertaking. The penalty provision was also upheld as valid provincial legislation, as it 
facilitates the operation of section 54 and is reasonably incidental to it. There was no 
paramountcy issue in Decision No. 647/9512, since the facts occurred prior to the effective 
date of regulations under the re-employment provisions contained in the Canada Labour 
Code, R.S.C. 1985, c. L-2, as amended. The Panel also noted that the Canada Labour Code 
allowed workers to avail themselves of laws that are more favourable to them. 



Penalties under the Re-employment Provisions 

Section 54(13) creates a discretionary penalty for breach of an employer's 
obligations under section 54. The maximum amount of the penalty is tied to the amount 
of the worker's net average earnings for the year preceding the injury. The dollar 
amount of the penalty is variable and, for injured workers with high paying jobs, can be 
quite significant. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Board policy is to impose the maximum penalty as a general rule unless the 
employer cannot hire the worker for reasons beyond its control (for example, a market 
collapse) or the employer subsequently re-hires the worker. Tribunal decisions 
continued the trend noted in previous annual reports of taking a more flexible approach 
to penalty assessments. A section 54 penalty is not determined independently of other 
considerations in the employment situation. Thus, a $30,000 penalty was waived despite 
evidence of some anti-injured-worker animus where the employer had legitimate 
concerns about the worker's performance and there was a decision from the Office of 
Adjudication that the employer had just cause for dismissal. See Decision No. 1518/97 
(1997), 44 W.S.I.A.T.R. 172. 



Future Economic Loss Awards and Supplements 

The pre-1997 Act replaced a scheme of permanent pension awards, with separate 
awards for future economic loss (FEL) and non-economic loss (NEL). Section 43 
provides for FEL benefits where the worker suffers injury resulting in temporary 
disability for 12 continuous months or permanent impairment. The statutory provision 
is quite complicated, as it creates its own review process and time limits for the original 
FEL decision (Dl) and FEL reviews (Rl and R2). This section is also closely tied to the 
right to rehabilitation in section 53, since a FEL award requires consideration of a 
number of factors including a worker's vocational rehabilitation prospects and what the 
worker is likely to earn in suitable and available employment. Section 43(9) creates a 
supplement to the FEL award where a worker is co-operating in a Board-authorized 
vocational or medical rehabilitation program. 

Annual Report 1994 mentioned that Decision No. 776/931 (1994), 32 W.C.A.T.R. 114, 
contained a thorough discussion of FEL provisions, but that a final decision was 
deferred pending additional submissions from the Board, the parties and Tribunal 
counsel. During this reporting period, Decision No. 776/93 (1997), 43 W.S.I.A.T.R. 16 was 
released. 

Many of the problems confronting Tribunal panels had been connected to the time 
limits for decision-making and review found in section 43(10) and (13). Decision 
No. 776/93 adopted a more flexible approach to section 43(10) which states that "where 
possible" the Board shall make the original FEL determination within certain time 
limits. "Where possible" was found to require a judgment to be made about whether 
sufficient evidence was available to make the initial FEL determination on a balance of 
probabilities. If it was not possible within the time limits, a second judgment was 
needed to select the appropriate date. The problem of retroactively applying time limits 
in FEL cases may not be as difficult in future, as Bill 99 repealed and replaced section 
43(13) with a more discretionary review framework. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Decision No. 776/93 also commented that the Board was not limited to performing 
FEL reviews at the designated times, but still had a general power to reconsider. 

With respect to the calculation of FEL benefits, Decision No. 776/93 found that 
section 43(3) does not mandate a projection of future earnings loss, but a determination 
of the worker's employment opportunities when medical and vocational rehabilitation 
is completed. The Panel also upheld the Board's policy of deducting CPP benefits from 
earnings under section 43(7), which states that the Board "shall have regard" to any 
disability payments the worker may receive for the injury under the Canada Pension 
Plan. Section 43(7) created a discretion regarding treatment of CPP benefits and the 
Board policy to reduce FEL benefits by the full amount of CPP benefits was within its 
discretion. 

Decision No. 863/95 (1997), 44 W.S.I.A.T.R. 61, considered a similar argument about 
CPP benefits. The majority found that the Board had correcdy interpreted section 43(7) 
in deducting CPP benefits. It distinguished several Supreme Court of Canada decisions 
in insurance cases and found Canada Pension Plan is a mandatory scheme and workers' 
compensation is a no-fault system. It could not be said in the workers' compensation 
setting, that a negligent defendant had benefited from an injured party's prior decision 
to buy insurance. 

Decision No. 344/93R (1997), 41 W.C.A.T.R. 1, accepted the Board's view that a 
section 43(9) FEL supplement can only be paid in total or not at all and varied an earlier 
order that was based on the assumption that a fluctuating wage loss supplement was 
available under the FEL scheme, as it had been under the earlier pension scheme. 

The question of the obligation of a self-employed worker to accommodate the 
workplace to a compensable disability was considered in Decision No. 14:54/97 (1997), 
44 W.S.I.A.T.R. 153. It was held that a self-employed worker should be held to the same 
level of accommodation as would reasonably be expected from an average employer. 



Non-economic Loss Awards 

Under the pension system, workers were not entitled to compensation for 
non-economic losses such as loss of enjoyment of life. Section 42 of the pre-1997 Act 
creates a non-economic loss (NEL) award to compensate for this type of loss following a 
permanent disability. Section 42 contains a technical assessment process including a 
formula for calculating NEL awards, a system of medical assessments by doctors, a 
process for challenging medical assessments and a separate NEL review process. The 
section requires the Board to make the NEL determination in accordance with a 
prescribed rating schedule while having regard to the NEL medical assessments. By 
regulation, the American Medical Association Guides (AMA Guides) are prescribed as 
the rating schedule. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Previous Annual Reports have noted a divergence in Tribunal decisions on whether 
the Board has any discretion to deviate from the rating schedule when an impairment is 
specifically listed in the AMA Guides. See Decision No. 269/93 (1994), 30 W.C.A.T.R. 123, 
which held that the Board did not have any discretion, and Decision No. 122/96 (1996), 
38 W.C.A.T.R. 205, which found the Board continued to enjoy the right to exercise some 
reasonable judgment in applying the AMA Guides. Decision No. 28/97 (December 1, 
1997) agreed with Decision No. 269/93 that the Board could not effectively amend the 
AMA Guides by adding a separate line for amounts not specifically listed. The AMA 
table provided for percentages of impairments for various ranges of flexion of the dorsal 
lumbar spine. The Panel interpreted the table as providing that all measures of lateral 
flexion from 0% to 9% received a 5% rating. 

The appropriate process for obtaining a second NEL assessment was considered in 
Decision No. 511/96 (1997), 42 W.C.A.T.R. 132, when the original NEL assessment could 
not be used as it was inconsistent with other material in the worker's file and the 
worker had died. Decision No. 572/97 (1997), 43 W.S.I.A.T.R. 260, found that a bilateral 
bursitis of the knee condition that was not covered by the AMA Guides should be 
assessed by analogy to the rating schedule pursuant to section 15(2) of Regulation 1102. 
Decision No. 277/961 (1997), 42. W.C.AT.R. 83, directed the Board to reassess the NEL 
award where a significant aspect of the worker's impairment had been overlooked. The 
Panel would make a final decision after the Board had performed the reassessment. The 
Panel's approach in this case was similar to that taken in some pension appeals under 
the pre-1985 and pre-1989 Acts. 



Transitional Supplements 

In addition to creating the NEL and FEL schemes for post-1989 injuries, section 147 
of the pre-1997 Act also provides for supplements for workers receiving pensions under 
the pre-1985 and pre-1989 Acts. Section 147 supplements are often referred to as 
"transitional supplements", since they are found in Part III of the pre-1997 Act, entitled 
"Transitional Provisions". Transitional supplements, like FEL supplements, are linked 
to a worker's prospects for medical and vocational rehabilitation. 

Section 147(2) provides that the Board shall pay a supplement to a worker who is 
likely to benefit from a vocational rehabilitation program which could help increase the 
worker's earning capacity so that it approximates the pre-injury earnings. Section 147(4) 
provides that the Board shall give a supplement to a worker who is not likely to benefit 
from a vocational rehabilitation program or whose earning capacity after such a 
program would not approximate pre-injury earnings. A section 147(2) supplement is 
paid only while the worker is participating in a Board-approved program. A section 
147(4) supplement continues until the worker becomes eligible for Old Age Security 
benefits. 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Earlier Annual Reports recorded that Decision No. 689/91 (1994), 30 W.C.A.T.R. 10, 
found that there was no statutory requirement to consider the reason for a worker's lack 
of vocational rehabilitation potential in determining entitlement to a section 147(4) 
supplement. Subsequently, the Board made general submissions on the interpretation of 
section 147(4), explaining the Board's policy that entitlement to a section 147(4)(a) 
supplement depended on the worker's wage loss being at least partially related to a 
compensable injury. These submissions were considered in Decision No. 213/93 (1995), 
34 W.C.A.T.R. 84, but it was not necessary for the Panel to decide that issue. While no 
decisions during the current reporting period have expressly considered the Board's 
submissions, Tribunal decisions have generally applied the Board's test and considered 
whether a worker's wage loss is at least partially related to a compensable injury. For 
example, in Decision No. 280/94 (1997), 43 W.S.I.A.T.R. 105, a section 147(4) supplement 
was granted where a worker was laid off due to downsizing when a number of job 
descriptions were combined and the worker could no longer perform part of the 
combined job due to his compensable injury. 

The question of whether a worker receiving several different pensions for different 
conditions could be entitled to more than one transitional supplement was considered 
in Decision No. 877/94 (1997), 41 W.C.A.T.R. 46. Board policy provided that a worker 
could get two section 147(4) supplements for two different injuries, but could only get 
one section 147(2) supplement since a vocational rehabilitation plan must consider the 
whole worker. The Panel reviewed the relevant legislative history and noted a change 
from discretionary vocational rehabilitation and a corresponding supplement under the 
pre-1985 and pre-1989 Acts, to a mandatory consideration of vocational rehabilitation 
and a supplement under the pre-1997 Act. The Panel emphasized that section 147 
provided a transition between the two systems of compensation, and was neither one 
nor the other. The Panel accepted that a vocational rehabilitation plan must consider the 
whole person, both compensable and non-compensable conditions. Similarly, the whole 
person must be considered in deciding whether a worker was likely to benefit from 
vocational rehabilitation and only one section 147(4) supplement can be awarded. 

Another major issue to come before the Tribunal was the appropriate scope of the 
Board's review of a transitional supplement. Section 147(13) provides that the Board 
"shall review" a supplement in the 24th and 60th month and "recalculate" the amount 
of the supplement in accordance with subsections (9) and (10). Decision No. 941/94 
(1997), 41 W.C.A.T.R. 69, again considered the legislative history of the transitional 
provision. The Panel concluded that while the amount of a section 147 supplement is 
open to review and recalculation, the entidement itself is constant, once the initial 
determination has been made. The Panel noted that if the Act can reasonably 
accommodate two interpretations, one of which is set out in Board policy, the Board 
interpretation should generally be followed. The Board's reading of section 147 in this 
case was consistent with the overall intent of the section and should be followed. In 
unusual circumstances, the initial section 147 decision might be so patently flawed that 
a decision might need to revisit the whole process at the time of the 24th or 60th month 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



review, but this would be the exception and not the rule. On the facts of the case, the 
Board had made an unwarranted reassessment of the initial entitlement decision and 
the supplementary benefits were reinstated. 

Given that transitional supplements are connected to earnings potential, a worker's 
co-operation with vocational rehabilitation may need to be assessed. Decision No. 1211/96 
(1997), 42 W.C.A.T.R. 205, held that the critical factors in assessing a worker's earning 
capacity are the worker's personal and vocational characteristics. It was not appropriate 
to assess a worker's earning capacity based on a high level of skill and high motivation 
where these were not present. An assessment should assume an average degree of 
motivation and skill. The Panel left open the possibility that a worker's motivation 
might be so low as to break the chain of causation with the result that the loss of 
earning capacity did not result from the injury. Decision No. 85/97 (1997), 43 W.S.I. A.T.R. 
190, held that while a failure to co-operate with vocational rehabilitation would 
disqualify a worker from receiving a section 147(2) supplement, it would only 
disqualify a worker under section 147(4) if co-operation with a vocational rehabilitation 
program would have been Likely to increase the worker's earning capacity so as to 
approximate the pre-accident earnings under section 147(2). Post-accident earnings of 
$10.40 an hour were found to approximate a worker's approximate pre-accident 
earnings of $12.00 per hour. See Decision No. 1071/97 (October 6, 1997). 



Occupational Stress 

The Annual Report 1995 and 1996 recorded that while earlier Annual Reports had 
noted that the Board was in the process of developing a policy on chronic occupational 
stress, the Legislature was considering enacting provisions in Bill 99 which would 
exclude compensation for chronic stress. These provisions received legislative approval 
in 1997, but did not come into effect until January 1, 1998. Accordingly, during this 
reporting period the Tribunal adjudicated stress appeals under the pre-1997 Act on a 
case-by-case basis. See Decision No. 719/96 (1997), 42 W.C.A.T.R. 144, which noted that 
the fact that the Board did not have an established policy, meant that cases were 
approached on an individual basis. The lack of a policy might be due to the limited 
ability of the compensation system to produce a balanced evidentiary picture in stress 
cases. 

The Tribunal generally applies a two-part test to stress cases. The "reasonable 
person" or "average worker" test considers: (1) whether a worker of average mental 
stability would perceive the workplace circumstances as mentally stressful; and, (2) if 
so, whether the average worker would be at risk of suffering a disabling mental 
reaction. 

During this reporting period, there were a number of appeals in 1997 involving 
allegations of sexual harassment or other types of harassment in the workplace. See 



10 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Decisions No. 500/94 (April 30, 1997), 609/9712 (November 20, 1997) and 754/96 
(December 11, 1997). In Decision No. 806/96 (October 21, 1997) the Panel applied a 
reasonable person test in finding that a worker was entitled to compensation for 
disabling stress where she was being stalked by a co-worker. However, her fibrositis 
condition, while related to stress, was not compensable since it was found to be due to 
the stress resulting from her personal decision to pursue complaints to the Ontario 
Human Rights Commission, the Ontario Labour Relations Board and a court action. 

Decision No. 77/97 (1997), 42 W.CA.T.R. 225, considered the question of harassment 
in the context of the worker's right to sue her employer for failing to take action to 
prevent her from being stalked by a co-worker. Since the worker would be entitled to 
compensation under the Act, the right of action against the employer was removed. 
Decision No. 530/97 (October 17, 1997) considered an appeal by a worker who had been 
the subject of allegations of sexual harassment and investigation pursuant to the 
employer's sexual harassment policy. While the worker had been placed in a very 
difficult personal position by the investigation, including the fact that it was confidential 
and she was not informed of the process, her resulting upset and discomfort did not 
constitute a disability. This decision makes a distinction that the Tribunal has drawn in 
previous cases, between an emotional reaction and a true disability. 

The effects of downsizing and the eventual closure of a plant were considered in 
Decision No. 861/96 (1997), 42 W.CA.T.R. 155. In that case, the worker had advance 
notice of the closing in time to accustom himself to the idea. Even if the worker had 
been surprised by the plant closure, this was not an uncommon event in an era of 
fluctuating economy, job loss and downsizing. The average worker might find the 
situation stressful, but there would not be a disabling mental reaction. While the Panel 
did not need to decide this, it commented that fear of unemployment may not be a 
matter falling within the scope of workers' compensation legislation in any event. 

Finally, Decision No. 719/96 (1997), 42 W.CA.T.R. 144, considered whether stress 
arising from a pending lay-off and/or being blamed for damaging equipment at work 
were acute stressors of the sort which might contribute to a heart attack. The Panel 
concluded that the worker had a high risk profile for a coronary artery disease and the 
heart attack was an inevitable step in the progression of the disease. 



Occupational Disease 

Occupational disease cases involve workplace exposure to harmful processes or 
substances. The Tribunal's interpretation of the law in this area remains the same. 
Disabilities are compensable if they fall within the statutory provisions governing either 
"occupational disease" or "disablement". 



11 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



In a disablement case, panels will examine the evidence relating to an individual 
worker to see if it supports a causal relationship, as well as general, medical and 
scientific evidence. For example, Decision No. 915/96 (1997), 41 W.C.A.T.R. 237, denied 
compensation for a claim for chronic obstructive lung disease (COLD) due to exposure 
to dust as there was medical evidence that the worker's smoking was sufficient to 
account for the degree of COLD and the evidence of any workplace contribution was 
tentative. However, compensation was granted in Decision No. 812/96 (May 23, 1997), 
where the worker had a total of 157.3 months of mine dust exposure in Ontario, the 
worker's cigarette smoking was less significant than it had been in many other cases, 
and there was specific medical evidence supporting a workplace relationship and no 
specific contrary medical evidence. 

Other interesting occupational disease cases include Decision No. 820/95 (1997), 
42 W.C.A.T.R. 73, which considered a claim for lung cancer due to exposure to a sinter 
plant in the nickel industry and Decision No. 305/97 (1997), 42 W.C.A.T.R. 282, which 
approved a provisional pension where exposure to sunlight in the course of 
employment had aggravated a pre-existing condition of discoid lupus erythematosus 
(DLE). Ongoing sensitivity to sunlight was due to the underlying condition and a 
permanent pension was not granted since there was no permanent aggravation from the 
workplace once the exposure had ceased. 



Earnings Basis 

The pre-1997 Act and earlier Acts contain provisions specifying how a worker's 
earnings basis is to be calculated for benefit purposes and what is to be included and 
excluded in the calculation. While the provisions in the three Acts are similar, they are 
not identical. A number of decisions were issued during this reporting period on 
earnings basis. 

An ongoing issue is whether unemployment insurance benefits (now employment 
insurance benefits) should be included as part of the earnings basis where the period of 
time during which a worker was unemployed is included in the calculation. Decision No. 
1462/97 (1997), 44 W.S.I. A.T.R. 163, noted that the prevalent approach at the Tribunal is 
to include unemployment insurance benefits. In many cases there is a real and 
reasonable expectation that the worker's average earnings would consist of both 
employment earnings and unemployment insurance benefits and these are factored into 
the ongoing employment relationship. The Board's current policy on earnings basis is to 
include periods of unemployment where they are a regular or predictable part of the 
employment pattern, but not to include the unemployment insurance benefits. Decision 
No. 1462/97 held that where there was a pattern of employment and lapses of 
employment which indicated that unemployment insurance benefits were an integral 
part of the earnings pattern, it was appropriate to include these benefits in the 
calculation of the worker's average earnings. The Panel also noted that the Board, in its 



12 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



proposed policy framework under the somewhat different legislative context of Bill 99, 
appears to have accepted the prevalent Tribunal view. 

Several Tribunal cases have considered whether vacation pay in the construction 
industry should be included in the earnings basis in various situations. See, for 
example, Decision No. 119/97 (1997), 43 W.S.I. A.T.R. 201, and Decision No. 911/96 (1997), 
42 W.C.A.T.R. 180. There have also been a number of decisions considering the 
appropriate earnings basis for workers who hold down more than one job. See, for 
example, Decision No. 431/97 (May 22, 1997). 

Calculation of earnings for self-employed workers has been considered in a number 
of cases, particularly whether it was more appropriate to use the self-employed 
worker's estimate on which he had paid assessments, or his taxable income for the year. 
See Decision No. 73/97 (1997), 41 W.C.A.T.R. 268, Decision No. 425/97 (1997), 43 WS.I.A.T.R. 
229, and Decision No. 977/97 (November 26, 1997) which commented that the Board 
should assess the accuracy of a self-employed worker's estimate before coverage is 
granted, rather than after benefits are claimed. Decision No. 113/97 (1997), 41 WS.I.A.TR 
274, considered the Board's policy for calculating the earnings basis for an 
owner/operator of a truck. While the Board needed policies to deal with a variety of 
situations in a simple, efficient and consistent manner, actual financial data should be 
used wherever possible. In this case, the information was readily available in a 
collective agreement and the real merits and justice of the case required that the actual 
data be used. 

Decision No. 826/96 (1997), 41 W.C.A.T.R. 225, considered deductions for income tax, 
Canada Pension Plan premiums and unemployment insurance premiums again in the 
context of the self-employed person. While it was appropriate to make deductions for 
CPP premiums, since these were mandatory annual or quarterly contributions, no 
deduction should be made for unemployment insurance benefits as self-employed 
persons did not participate in that plan. 



Experience Rating of Employers (NEER and CAD-7) 

NEER and CAD-7 are experience rating programs which are intended to shift some 
of the burden of a rate group's costs to employers with above average claim costs. As of 
January 1, 1995, NEER includes all rate groups in Schedule 1 except those in CAD-7. 
The CAD-7 plan covers 11 rate groups in the construction industry. The CAD-7 formula 
involves a rating factor based on man hours, and looks at information over a two-year 
period on average expected accident costs and the firm cost index, firm frequency index 
and firm performance index. For NEER, the Board reviews the claim costs for an 
employer for a given accident year in each of the three following years and compares 
these to the assessment rate for the rate group. 



13 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Where an employer is retroactively relieved of certain costs associated with a claim, 
for example, through the Second Injury and Enhancement Fund (SIEF), the question 
arises as to whether there should be a retroactive adjustment to the experience rating 
assessment. Several appeals during this period have considered this issue in the CAD-7 
context. The Board's policy is to exclude costs from claims more than five years old 
when calculating CAD-7 assessments. However, prior to the summer of 1995, the 
Board's practice generally was to allow retroactive adjustments outside this "five-year 
window". In the summer of 1995, this policy changed and adjustments outside the 
five-year window were only allowed in exceptional cases. Decision No. 180/97 (1997), 
44 W.S.I. A.T.R. 98, held that where an employer made a request for retroactive 
adjustments prior to the change in policy, the practice as it existed at the time of the 
request should be applied. And see Decision No. 1249/97 (December 16, 1997). However, 
Decision No. 1433/97 (December 17, 1997) noted that while some cases had applied the 
policy in effect at the time of the employer's application, the employer's delay of seven 
years in applying was excessive and the retroactive adjustment should not be allowed. 



Other Employer Issues 

A number of Tribunal decisions have commented on Board policy as it affects 
employer concerns. Decision No. 499/96 (1997), 43 W.S.I.A.T.R. 166, contains a good 
outline of the Tribunal's current approach to Board policy. It recognized that the Board 
is entitled to rely on policy to limit the retroactive reclassification of employers to six 
years under section 69(2)(a) and section 107 of the pre-1997 Act. The Tribunal applies a 
"reasonableness" standard of review in considering appeals from broad discretionary 
issues in which there is a systemic interest; however, this is balanced against the fairness 
concerns of the employer in a particular case. The Tribunal will not interfere with Board 
policy unless it is inconsistent with the Act, or unless the policy has been applied in an 
arbitrary, unreasonable or cuscriminatory fashion against a particular employer. The 
Tribunal upheld the Board's policy on retroactive reclassification, but allowed the 
employer's appeal that the Board should pay interest on the over-assessment. While the 
Board had considered adopting a policy on interest payments to employers, it had not 
done so. In the absence of policy, the Panel adopted the reasoning in Decision No. 526/93 
(1996), 39 W.C.A.T.R. 14, and examined the merits of the case. Considering the 
employer's status as a non-profit organization, that it voluntarily applied for coverage 
and that the Board was not required to repay the full over-assessment, the Panel 
concluded that the real merits and justice of the case indicated that the Board should 
exercise its discretion to pay the employer interest. Decision No. 534/971 (1997), 
43 W.S.I.A.T.R. 252, recognized that while the Board is always entitled to alter policy, 
where policy was altered to the detriment of anyone carrying on business in Ontario, it 
should be altered on a prospective basis rather than retroactively. 

Decision No. 998/94 (1997), 43 W.S.I.A.T.R. 117, considered an appeal from a penalty 
assessment of $275,000 under section 103(8) of the pre-1997 Act. The Panel commented 



14 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



that the authority to levy penalty provisions of this magnitude carried with it the 
responsibility to establish and communicate clearly the evidence that led the Board to 
the conclusion that such a penalty is warranted, as well as the responsibility to develop 
policy that is consistent with the Act and regulation and to apply the policies as 
uniformly and consistently as possible. 

Decision No. 323/96 (1997), 42 W.C.A.T.R. 88, considered the argument that there was 
a systemic unfairness in requiring the employer to pay a penalty assessment under 
section 91(7) of the pre-1990 Act, after this approach had been replaced by the more 
equitable NEER policy. While the Panel agreed that the NEER program was a more 
equitable assessment system, and that future amendments to assessment provisions 
would produce a more refined and equitable system, this did not mean that the Board's 
earlier policies were invalid. The Panel agreed with Decision No. 504/92 (1995), 
36 W.C.A.T.R. 37, that NEER did not provide a mechanism to protect the system from 
employers who had already imposed a financial burden on the rate group. It was not 
unreasonable for the Board to use section 91(7) penalties to try to recapture costs where 
the employer had previously had a poor accident record. However, the Panel set aside 
the penalty where the employer had made a prima facie case that it was part of a 
separate industry within a rate group. The employer should then have been able to use 
Board data on industries in the rate group. Since no such data existed, the employer 
could not demonstrate its defence and the penalty was set aside. 

Finally, the Board's policy on late payment charges was considered in several cases. 
Decision No. 477/97 (1997), 43 W.S.I. A.T.R. 247, noted that Board policy does not 
specifically deal with relief from late payment charges, although there are policy criteria 
for relieving from penalties for failure to notify of an accident. Full relief is granted if 
there are causes beyond the employer's control, e.g., flood, fire, theft, postal 
interruption, and partial relief is available for excusable reasons. In applying the real 
merits and justice provision in the Act, the Panel found it was reasonable to consider 
similar grounds of relief for late payment charges. And see Decision No. 799/95 (1997), 
42 W.C.A.T.R. 52. 



Right to Sue Applications 

Workers' compensation is often referred to as an "historic trade-off" between 
employers and workers, with workers giving up their right to sue in exchange for a 
system of statutory no-fault benefits. The Tribunal has the exclusive jurisdiction under 
the Act to determine whether an injured worker's civil right of action has been 
removed. Decision No. WOO/971 (1997), 44 W.S.I.A.T.R. 117, considered the interaction 
between the Workers' Compensation Act and amendments to the Insurance Act which 
create statutory accident benefits and a system of arbitration. It was held that an insurer 
from whom statutory accident benefits are claimed under the Statutory Accident Benefits 
Schedule - Accident before January 1, 1994, had standing as a party to bring an application 



15 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



for determination as to a worker's entitlement to compensation under the Workers' 
Compensation Act. 

Other interesting right to sue applications include Decision No. 948/971 (September 
26, 1997), which dealt with issues arising from the settlement of passenger claims in a 
fatal airplane crash, Decision No. 876/96 (October 29, 1997) on the interaction between the 
Workers' Compensation Act and the Occupiers' Liability Act, and Decision No. 77/97 (1997), 
42 W.C.A.T.R. 225, which removed a worker's right of action against her employer for 
an emotional disability sustained as a result of being stalked by a co-worker. The Panel 
did not remove the worker's right to sue for constructive dismissal, as this was a labour 
relations matter rather than a compensation issue. 



Miscellaneous 

Other significant legal and medical issues to come before the Tribunal include: 
Decision No. 224/97 Quly 30, 1997) which considered health care benefits when a worker 
had suffered a serious compensable head injury and had subsequently become addicted 
to drugs; Decision No. 101/95 (1997), 41 W.C.A.T.R. 93, which considered conflicting 
medical evidence about the causes of a fatal heart attack suffered by a cement finisher; 
and Decision No. 426/94 (1997), 44 W.S.I.A.T.R. 14, which considered a fatal heart attack 
which occurred at work as result of cardiac arrhythmia. Decision No. 312/96 (1997), 
41 W.C.A.T.R. 120, considered the legal concept of an intervening cause which would 
break the chain of causation with respect to a worker who had been blinded in one eye 
due to a compensable accident, and then suffered a second non-compensable accident 
which rendered him blind in both eyes. Decision No. 825/96 (1997), 41 W.C.A.T.R. 203, is 
an example of a catastrophic condition attracting a 100% pension, where the worker had 
suffered a traumatic major head injury and was as disabled as if he had been blinded. 

During this reporting period, the Tribunal experimented with two pilot projects 
involving increased use of mediation and less formal hearing processes: the Early 
Resolution Stream and the Alternative Hearing Stream. Various approaches developed 
by these pilot projects are now being applied more generally to Tribunal hearings. 

Decision No. 276/97 (1997), 42 W.C.A.T.R. 272, describes the Early Resolution 
process, which was developed to explore ways of resolving appeals other than by a full 
oral hearing. The process utilizes Appeals Resolution Officers or AROs (now Early 
Resolution Officers or EROs) to assist the Panel and parties in clarifying or settling 
issues. The ERO is responsible for a neutral review and recommendation regarding the 
case. The Officer must be satisfied that the parties had given their informed consent and 
that the recommendation is consistent with the policy and law and with findings of fact 
that might reasonably be made after a hearing. 



16 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Decision No. 304/971 (1997), 43 W.S.I.A.T.R. 209, described a typical alternative 
hearing case where a Tribunal legal worker, through discussions with the parties, was 
able to clarify their position. The case was unusual in that while the parties agreed on 
the appropriate outcome, there was limited agreement on the facts. In deciding that the 
parties' joint submission could not be accepted, the Panel identified a number of factors 
to consider in reviewing settlement arrangements. While weight must given to the 
parties' views, decisions under the Act must be made on the merits and justice. Joint 
submissions must be based on the available evidence and the conclusions must be ones 
which would likely be drawn by a Panel. The process followed must also be fair and not 
abusive of the Tribunal's processes. 

Decisions No. 336/93R (February 7, 1997) and 759/93RI (1997), 41 W.C.A.T.R. 24, 
considered issues arising from the use of independent medical assessors to provide 
expert opinions to the Tribunal, while at the same time ensuring that the parties have a 
full opportunity to respond to the new medical information. 



APPLICATIONS FOR JUDICIAL REVIEW 



In 1997, three applications for judicial review were heard and dismissed by the 
Divisional Court, in respect of the following Decisions: 

• Decision No. 199/94, dismissed February 11, 1997; 

• Decision No. 24/96, dismissed October 24, 1997; 

• Decision No. 1120/96, dismissed April 17, 1997. 

A motion for leave to appeal the decision of the Divisional Court upholding Decision 
No. 1120/96 was made to the Court of Appeal and dismissed for delay on September 25, 
1997. 

Two additional applications for judicial review were heard and dismissed by the 
Ontario Court (General Division) under Rule 6 of the Rules of Civil Procedure: 

• The first was an application that a judicial review of Decision No. 501/96 be 
heard by expedited process before a single judge of the Ontario Court. This 
application for expedited process was heard and denied on July 8, 1997. The 
application for judicial review was subsequently withdrawn. 

• The second was an application made for judicial review of a decision of the 
Tribunal Chair to decline to expedite scheduling of an appeal in priority to 
appeals received earlier, in order to allow the appeal to reach a Panel prior 



17 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



to the effective date of the new Workplace Safety and Insurance Act, 1997, on 
January 1, 1998. The application was heard by a judge of the Ontario Court 
(General Division) on December 23, 1997, by expedited process, and 
dismissed by endorsement dated December 24, 1997. (An application for 
leave to appeal from this decision was dismissed after the end of the 
reporting period.) 

In addition, an application to Divisional Court for judicial review of Decision No. 
432/94 was dismissed for delay on June 9, 1997. Two other applications for judicial 
review, of Decisions No. 850/94 and 81/95, were withdrawn. 



Judicial Reviews Outstanding 

Leave to appeal the decision of the Divisional Court upholding Decision No. 716/911 
had been granted on April 22, 1996. As of the end of the reporting period, the Court of 
Appeal had not yet heard the appeal and this matter remained outstanding. 

An application for judicial review of Decision No. 830/96 also remained outstanding. 

OTHER COURT MATTERS 



On December 2, 1992, an injunction had been granted by the Ontario Court (General 
Division) restraining an applicant from proceeding with a section 17 application before 
the Tribunal until the trial or other final disposition of the matter. The Tribunal had 
been accorded status as a Friend of the Court and opposed the granting of the 
injunction on jurisdictional grounds. On February 4, 1993, the section 17 applicant's 
application for leave to appeal from this decision was granted by the Divisional Court, 
and on June 9, 1993, the Divisional Court set aside the injunction. On January 24, 1994, 
the section 17 respondent's application for leave to appeal to the Court of Appeal was 
granted. By endorsement dated March 7, 1997, the Court of Appeal dismissed the 
appeal and endorsed the decision of the Divisional Court that the injunction be set 
aside. 



OMBUDSMAN COMPLAINTS 



Since its creation in 1985, the Tribunal has received, on average, notification of 
approximately 60 Ombudsman complaints a year. In 1997, the Tribunal was notified of 
37 case-related complaints. Since an Ombudsman complaint can relate to a Tribunal 



18 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



decision made at any time, notifications received in 1997 did not necessarily deal with 
recent cases. 

The Ombudsman Office thoroughly investigates complaints and considers the 
reasonableness of the Tribunal's analysis. Most Ombudsman investigations result in a 
letter from the Ombudsman advising that there is no reason to question the Tribunal's 
decision, although a few have resulted in the Tribunal undertaking a reconsideration 
process. The Annual Report 1995 and 1996 noted that since 1990, there have been 26 such 
reconsiderations and that 23 of these had been completed. During 1997, no Ombudsman 
letters were received which required a reconsideration process, although one 
investigation resulted in a changed administrative decision. 

Of the three outstanding reconsiderations from 1996, two are still open and one was 
closed by a Tribunal decision allowing the reconsideration. The Ombudsman 
investigation in this case indicated a need for clearer guidelines regarding release of 
potentially harmful information to a worker through the worker's treating physician. 
When the Tribunal revised its Practice Direction: Access to Workers' Piles in fight of Bill 99, 
it also incorporated a procedure to be followed in such cases. 



19 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



The Tribunal 
Report 



VICE-CHAIRS, MEMBERS AND 
STAFF 



Lists of the Vice-Chairs and Members, senior staff and 
Medical Counsellors who were active at the end of the reporting 
period, as well as a list of 1997 reappointments and resumes for 
newly appointed Vice-Chairs and Members, can be found in 
Appendix A. 



OFFICE OF COUNSEL TO THE 
CHAIR 



The Office of Counsel to the Chair has been in existence 
since the creation of the Tribunal. It is a legal department, 
separate from the Tribunal Counsel Office, which is not 
involved in the hearing process or in making submissions in 
cases. A primary responsibility of Counsel to the Chair and the 
four Associate Counsel to the Chair is the draft review process. 

The Tribunal's draft review process is structured to promote 
the quality, coherence and consistency of decisions, while at the 
same time respecting the independence and autonomy of 
Tribunal decision-makers. OCC lawyers follow the Guidelines for 
Review of Draft Decisions, which were originally published as 
Appendix A to the Annual Report 1992 and 1993 and are 
contained in the Tribunal's Members' Code of Professional 
Responsibility} The Guidelines make clear that drafts are only 
reviewed at the request of the decision-writer and adopt the 
Tribunal's Hallmarks of a Good-Quality Adjudicative Decision as the 
standard for review. The Hallmarks were adopted as part of the 
Tribunal's 1988 Statement of Mission, Goals and Commitments and 
are also part of the Members' Code of Professional Responsibility. In 
the upcoming year, the Tribunal will be reviewing the Members' 
Code of Professional Responsibility to ensure that it remains 
relevant and up-to-date. 



1 The Tribunal's Guidelines for Review of Draft Decisions are also 
available in Administrative Agency Practice, edited by James Sprague, 
at (1997), 2 A.A.P. 137. 



21 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



In 1997, the OCC reviewed the draft review process following the release of the 
Supreme Court of Canada decision in Quebec Inc. v. Quebec (Regie des Permis d'alcool), 
[1996] 3 S.C.R. 919. This case clarified that structures should be in place to ensure that 
the same agency lawyer is not involved in making submissions and also providing 
advice to decision-makers. No changes were made to the Tribunal's draft review 
process, since it already complied with this requirement. 

In addition to the draft review process, other OCC responsibilities include 
providing advice to the Chair and Chair's Office, training and professional 
development, current awareness and research services, administering the 
reconsideration process, responding to Freedom of Information and Protection of Privacy 
Act issues and complaints, and assisting with Ombudsman matters. Given the 
enactment of Bill 99 and the appointment of several new Tribunal decision-makers, 
there was increased emphasis on training during 1997. 



TRIBUNAL COUNSEL OFFICE 



The Tribunal Counsel Office (TCO) consists of five groups, each reporting to the 
General Counsel: Intake, the Pre-hearing Group; the Post-hearing Group; the Lawyers 
and the Medical Liaison Office. 



Intake 

The Intake department handles all incoming appeal applications and the public's 
questions about appeals and about the appeal process. 

The Intake department is also primarily responsible for the Tribunal's "special 
section" cases. In 1997, the special section cases included cases about access to the 
worker's file, employer requests for medical examination and cases on the right to 
maintain civil actions for damages. 

In 1997, the Intake group also included the case analysts, who were responsible for 
the production of the Case Record. 



Pre-hearing Legal Workers 

When the Case Record is complete, the case is scheduled, and is transferred either 
to a pre-hearing legal worker or to a lawyer, for carriage through the hearing process. 
Over 95% of cases are handled by legal workers. These legal workers deal with matters 



22 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



that arise pre-hearing, and provide assistance to the parties if there are questions 
respecting the preparation of the cases. 

The pre-hearing legal workers are headed by the Manager of the Pre-hearing 
Group. 



Post-hearing Legal Workers 

When a panel identifies that additional information is required after a hearing, a 
request is made to the post-hearing legal workers, who co-ordinate this continuing 
investigation. 

The post-hearing legal workers are headed by the Senior Legal Worker, Post-hearing. 



Lawyers 

In 1997 there were five lawyers in TCO, reporting to the General Counsel, as well as 
four articling students (one from the 1996/97 articling year and three for 1997/98). 

Lawyers continued to handle a small number of the most complex cases, involving 
novel legal issues or issues which have been identified as involving a significant 
Tribunal interest. The work of TCO lawyers increasingly involved the provision of 
technical advice to the pre-hearing group or case analysts or work for the new 
specialized teams. One TCO lawyer was assigned on a full-time basis to the Early 
Resolution Team. Another TCO lawyer was assigned to the Alternative Hearing Stream. 
Still another lawyer took responsibility for advising on all NEL, FEL, reinstatement and 
employer assessment and classification issues, and supervision of the pre-hearing legal 
workers on those issues, and another undertook a similar role on files involving stress, 
chronic pain, occupational disease, hearing loss and psychiatric issues. The fifth TCO 
lawyer advised the case analyst group. 

TCO lawyers also handled applications for judicial review and other court-related 
matters. 



Medical Liaison Office 

The Tribunal has an interest in ensuring that hearing panels have sufficient and 
appropriate medical evidence on which to base decisions. All Case Records are 
reviewed by the Medical Liaison Office for the purpose of identifying those cases in 
which the medical issues may be problematic, complex or novel to the Tribunal. Cases 



23 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



selected from this process are referred to the Tribunal's Medical Counsellors to check 
that the medical assessment of the worker's injury is complete and that the record 
contains opinions from appropriate experts when required, and to attempt to ensure 
that questions or concerns about the medical issues that may need clarification are 
identified. 

At the pre-hearing stage, Medical Counsellors may recommend getting more 
information from a patient's treating physician. In addition, they may recommend 
obtaining a Medical Assessor's opinion if the diagnosis of the worker's condition is 
unclear if there is a complex medical problem that needs explanation or if there is an 
obvious difference of opinion between qualified experts. 

At the post-hearing stage, panels requesting further medical investigation may 
request the assistance of the Medical Liaison Office in preparing specific questions that 
may be helpful in resolving medical issues that are troubling to the panel. Medical 
Counsellors assist the Medical Liaison Office in providing additional questions for the 
hearing panel's consideration. 

The Tribunal's relationship with the medical community is regarded as a 
particularly high Tribunal priority. Ultimately, the quality of the Tribunal's decisions on 
medical issues is dependent on that relationship. The Medical Liaison Office co-ordinates 
and oversees all of the Tribunal's interactions with the medical community. That 
relationship remains positive and is evidenced by the Tribunal's continuing ability to 
enlist readily leading members of the profession to its service. 

Provision of information 

The Medical Liaison Office continues to place in the Tribunal Library, medical 
articles, discussion papers and transcripts of testimony of experts who have appeared at 
Tribunal hearings regarding medical or scientific issues that contain information that 
may be useful in future appeals. All transcripts are anonymized and literature cited in 
these transcripts is placed in the Library's vertical file. This collection of medical 
information specific to issues that arise in the workers' compensation field is unique 
within the Ontario workers' compensation system and is accessible to the public. 
Discussion papers on general medical topics that frequendy arise in compensation 
matters are prepared by the Tribunal's Medical Counsellors or Medical Assessors and 
are also available in the Library. 

Database 

In 1993, the Medical Liaison Office began to use a database designed by the Chief 
Information Officer to help track the nature of medical issues at the Tribunal, the type of 
investigations conducted by the Medical Liaison Office, decisions using this evidence, 



24 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



and which Medical Assessors provided expert evidence to the Tribunal. The database 
helps the Medical Liaison Office analyze the nature and extent of its workload and of 
the medical investigations conducted by the Tribunal. It is also expected that the 
database will provide an easily accessible way to determine what information already 
exists within the Tribunal, that may be useful in appeals with similar medical fact 
situations. 



Audit 

In addition to case specific medical evidence issues, the Medical Liaison Office 
co-ordinates the Tribunal's medical audit. The audit is internal and post-decision. The 
purpose is to obtain, from the Medical Counsellors, a medical professional's perspective 
on the manner in which medical facts or theory are treated or recorded in Tribunal 
decisions. The audit permits the Tribunal to evaluate its processes and practices as they 
relate to medical issues and medical evidence. The audit highlights areas to educate 
Tribunal members and staff further through medical education initiatives. 



MLO and the Medical Component 
Medical Counsellors 

The Tribunal's Medical Counsellors are a group of senior specialists who have 
accepted part-time employment with the Tribunal and serve as wise counsel to the 
Tribunal in the medical area generally. They are an integral part of the Medical Liaison 
Office. The Medical Counsellors' Chair is Dr. Ross Fleming. Dr. Douglas Bryce retired 
from the Medical Counsellor Chair position during the 1997 year. A list of the Medical 
Counsellors can be found in Appendix A. 

Services Provided by Medical Counsellors 

Cases selected by the Medical Liaison Office are referred to the Tribunal's Medical 
Counsellors to ensure that the medical assessment of the worker's injury is complete, 
that the record contains opinions from appropriate experts when required and that 
questions or concerns about the medical issues that may need clarification are 
identified. Unlike the Medical Assessors, they do not examine workers nor do they give 
evidence or otherwise communicate with hearing panels in individual cases. 

Upon review of a case, the Medical Counsellor provides an opinion to the Medical 
Liaison Office as to whether or not the evidence is sufficient and, if not, what other 
avenues of investigation ought to be explored. If the Medical Counsellor recommends 



25 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



further investigation, the Medical Liaison Office then arranges for the necessary 
investigation to be carried out. 

Medical Counsellors continue to monitor the sufficiency and quality of the 
Tribunal's Medical Assessor roster. Appointments of some of the leading physicians in 
several highly specialized areas of medicine are initiated by Medical Counsellor 
recommendation. Medical Counsellors advise the Tribunal Chair generally with respect 
to medical profession protocol including advice on the question of appropriate fees for 
the Medical Assessors. 

At the case preparation stage, Medical Counsellors advise Tribunal counsel 
concerning the sufficiency of the medical evidence. Through experience, the Tribunal is 
satisfied that this does not interfere with the autonomy and independence of the 
hearing panels. Vice-Chair and Member support for the procedure is virtually 
unanimous, and all concerned find it impossible to imagine how, given its operational 
circumstances, the Tribunal could have managed without this procedure. 

Through an ongoing series of lectures, the Medical Counsellors have helped to raise 
the level of the Tribunal's general medical literacy. 

Medical Counsellors participate in an internal audit process to obtain from a 
medical professional's perspective the manner in which medical fact or theory is treated 
and recorded in Tribunal decisions. 

The role of the Medical Counsellor continues to develop and is subject to ongoing 
review. 



Medical Assessors 

During 1997, the Tribunal's powers of medical investigation continue to be as set 
out in sections to 87 to 92 of the Workers' Compensation Act. Under these sections, the 
Appeals Tribunal has the power to initiate medical investigations if it thinks it is 
necessary in order to determine any medical question at issue on an appeal. Such 
investigations, including further examination of a worker, are referred to qualified 
medical practitioners on a list of authorized practitioners appointed by the Lieutenant 
Governor in Council (the provincial Cabinet). 

Section 87 of the Act provides for the establishment, through appointment by 
Order-in-Council, of what the statute's marginal notes refer to as a "Panel of medical 
practitioners." In fact, the marginal note's characterization of these physicians as a 
"panel" is misleading. The Act does not contemplate the physicians acting together as a 
panel in any respect. It is also clear that they are not intended to have any 
decision-making capacity. A more accurate collective description of this group of 



26 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Order-in-Council appointed physicians would be that of a "roster." It is the physicians 
on this roster to whom the Tribunal may send a worker for further medical 
examination. The Tribunal has also adopted the label "Medical Assessors" for the 
physicians on its roster. This label reflects generally what the Tribunal understands their 
intended role to be, and serves to distinguish this set of physicians from the Tribunal's 
own "Medical Counsellors." 

The substantial changes proposed to the Workers' Compensation Act as a result of 
Bill 99 are expected to impact only incidentally on the role of the Tribunal's Medical 
Assessors and Medical Counsellors. Although Tribunal Medical Assessors will no 
longer be appointed by Order-in-Council, and the statutory requirement for 
consultation prior to their appointment is removed, their role in assisting in medical 
investigations is retained. Further, the revised sections of the new Act will authorize the 
Tribunal to use any health professional as an assessor. 

The Appointment Process of Medical Assessors 

The recruitment and appointment of the Medical Assessors, under the provisions of 
section 87 of the Act, has been a long and complex affair. The section has required that 
the Lieutenant Governor in Council make the appointments after "requesting and 
considering the views of representatives of employers, workers and physicians." The 
procedure that has emerged to comply with this requirement is as follows. 

The members of the Tribunal's Advisory Group were adopted as the representatives 
of employers and workers for this purpose. The Tribunal's Advisory Group is 
composed of organizations representative of workers and employers. The Tribunal's 
Medical Counsellors were considered to be the representatives of physicians due to 
their seniority and eminence within the medical profession. 

The members of the Advisory Group and the Medical Counsellors were invited to 
suggest the names of appropriate candidates. The Medical Counsellors consult with 
other colleagues within their profession. Names suggested by the Advisory Group or 
which come to the Tribunal Chair's attention from other sources are reviewed with the 
Medical Counsellors. 

A tentative list of potential candidates was developed in this fashion. The 
physicians on that list were then approached to see if they would be interested in 
allowing their names to be entered in the approval process. The help of the Medical 
Counsellors was often enlisted in this recruitment process. 

In anticipation of the changes in the new Act, no new Order-in-Council 
appointments for physicians were sought in 1997. The Medical Liaison Office requested 
that all the physicians who were on the roster continue to function as Medical Assessors 



27 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



without the formal Order-in-Council appointment process. The future process for 
recruitment of Medical Assessors will resemble the old process, with the exception of 
the Order-in-Council appointment. 

Services to be Provided by Assessors 

Medical Assessors on the roster are asked to assist the Tribunal in a number of 
possible ways. Typically, they are asked to examine a worker, study the medical reports 
of other practitioners and give their opinion on some specific medical question. 
Physicians specializing in a particular field might be requested to assist in educating the 
Tribunal or one of its hearing panels in a general way about some medical theory or 
procedure. The Medical Assessor may be asked for an opinion as to the validity of a 
particular medical theory which a hearing panel has been asked to accept, or to 
comment on the representative nature, quality or relevancy of a selection of medical 
literature that the Tribunal may have been asked to consider. 

The opinions are normally sought in the form of written reports containing the 
history, observations and test results on which the opinion is based. Copies of the 
reports are made available to the worker, employer and the Board, and references will 
be typically made to the report in the Tribunal's reasons for its decisions. 

It is expected that a written report will normally be sufficient, and attendance at the 
hearing of the case in question will not be required. On occasion, however, it will be 
apparent that a Hearing Panel must have the opportunity to question the physician for 
purposes of clarification and explanation of the opinion, if it is to be able to decide the 
medical issue with confidence. In those cases, the physician will be asked to appear at 
the hearing and give oral evidence. On those occasions, the participating parties, as well 
as the Hearing Panel, have the opportunity to discuss the opinion with the physician. 

Where the physician is asked to attend the hearing, every effort is be made to 
mi nimiz e the inconvenience and the impact on the practitioner's usual schedule. Special 
compensation for attendance at hearings takes into account the schedule disruption 
associated with such attendance. The tariff arrangements are set according to the fact 
that appearances at Appeals Tribunal hearings impose an extra burden on most 
physicians by reason of their urtfamiliarity with the process and the fact that some 
preparation time will usually be required. 



Procedural Changes 

In 1997, TCO made a number of procedural changes to address the Tribunal's 
backlog: 



28 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



1) It introduced a formal waiting list, for cases that could not be put into 
immediate processing because of the backlog. 

2) It began use of the Tribunal's new "inactive status" for cases not ready to 
proceed. 

3) It discontinued the practice of assigning staff to do a full "case analysis" on 
smaller files. Only the most complex files, or those with unrepresented 
workers, were assigned for a detailed review of the file by staff before being 
sent to scheduling. For other cases, the file was not reviewed. The Tribunal 
Counsel Office checked the file before it was sent to the parties for limited 
matters only, including respondent notice issues and access issues. Tribunal 
staff also no longer sorted the file except in a cursory manner. 

The file continued to be assigned to an experienced legal worker for carriage 
through the hearing process, but case load increases also decreased the 
ability of these workers to address issues. 

4) On many of these "direct flow" cases the Tribunal also began sending the 
parties an information request to be completed before the appeal was 
scheduled. The information request required review of the file by the 
representative as well as the submission of all relevant new evidence. It 
therefore placed the responsibility for file review on the party instead of the 
Tribunal. However information requests were not sent on appeals where the 
worker was unrepresented. Staff continued to do full preparation of files 
with unrepresented workers. 

5) In addition, the Early Resolution Stream continued to offer mediation 
services on appropriate cases. This remained an experimental approach to 
ADR techniques which was intended to identify earlier, more informal, 
interest-based approaches to issue resolution. Its success continued to be 
monitored to see if efficiency in processing cases was increased or decreased 
through these techniques. 



SCHEDULING 



Recording of Regional Hearings 

In 1997, the Tribunal phased out the use of court reporters for most regional 
hearings. Panel members operate portable recording equipment at the hearings. The use 



29 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



of recording equipment instead of court reporters was put in place for Toronto hearings 
in 1994 and in light of its success in Toronto, the process was extended to the regional 
hearings. 

A study of the use of recording equipment illustrated the potential savings and 
feasibility of the process. By recording its own hearings, the Tribunal has control over 
the security and storage of the tapes. The parties can request transcripts of Tribunal 
hearings. In accordance with the Tribunal's policy, the parties will be responsible for the 
costs of producing the transcripts. 



Practice Direction: Adjournments and Withdrawals 

The Tribunal issued a new practice direction entided Adjournments and 
Withdrawals. The practice direction outlines the guidelines for adjournment requests 
forwarded to the Appeals Administrator or to the Hearing Panel. As well, guidelines 
are provided for withdrawals of appeals. 

Hearing panels are assigned approximately three weeks prior to the hearing date. 
With last minute adjournments and withdrawals, there is concern about the Tribunal's 
ability to utilize fully the assigned panels. As a result, the Appeals Administrator now 
routinely assigns written cases to the panels as replacement cases for oral hearings 
which adjourn or withdraw on short notice. This practice provides an efficient use of the 
panels' time and allows written cases to be assigned in a timely manner. 



INFORMATION DEPARTMENT 



Library Services 

The Library is responsible for providing information services to Tribunal staff and 
Members as well as other researchers, including workers, employers and 
representatives. 

The Library collection focuses on legal and medical aspects of workers' 
compensation. The collection includes books, government documents, conference 
proceedings, periodicals, WCB policy documents, Tribunal papers, book chapters and 
journal articles. All Tribunal decisions are available as well. Particular emphasis is 
placed on collecting and organizing materials pertinent to the Ontario workers' 
compensation system. Documents are indexed and made accessible with in-house 
databases. 



30 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



The most frequently used Library resource is the database of Tribunal decision 
summaries. Librarians assist users in formulating their search and train staff and 
Tribunal panel members in using the database from their own work stations. Librarians 
also provide assistance to external subscribers to this database. 

An improved user interface was added to the Library's public access computers, 
allowing users easily to print full-text decisions to a laser printer, rather than relying on 
the photocopier. This may pave the way for the eventual elimination of hard copy 
Tribunal decisions in the Library, as space becomes more of an issue. 

The World Wide Web was used as an information resource more frequently than in 
previous years. Partly this is due to fee-based database vendors and document delivery 
services converting to a web interface. As Internet search engines have improved and 
the amount of useful data available has increased, we increasingly use the web as a 
complementary source of information. 

The Library is also responsible for maintaining the Tribunal's web site 
(www.wsiat.on.ca). In 1997, the web site was enhanced by adding more information 
about the appeals process, by making the Appeal Application form available and by 
adding summaries of recent decisions of interest. 



Publications 



Reporter 

The Consolidated Index for the W.C.A.T. Reporter was published in 1997. It covers all 
of the Decisions in Volumes 1 to 38 of the Reporter (1985 to 1996). The Consolidated Index 
makes research of the decisions in the Reporter much easier and faster. 

This 500-page special volume contains the following: 

• Consolidated Table of Cases 

• Consolidated Keyword Index (English and French) 

• Consolidated Index to Subject Matter (English and French) 

• Consolidated Proceedings Related to Reported Decisions (English and French) 

We are again publishing the Tribunal's Practice Directions in the Reporter. 



31 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



Photocopy Service 

In October 1997, the Publications Department improved its Photocopy Service for 
Tribunal decisions by adding service on both the Standard and Rush Service and by 
reducing prices on the Rush Service. 

Service by FAX is now available on the Standard Service. The cost of the Standard 
Service remained unchanged. On the Rush Service, the limits on the number of 
decisions were increased and the service charges were lowered. 

New Legislation 

In anticipation of the coming into force of the Workplace Safety and Insurance Act, 
1997, on January 1, 1998, the Publications Department began a review of its 
publications. At the least, the name of virtually all publications would have to be 
changed as a result of the Tribunal's name change. New keywords were developed to 
accommodate the statutory changes. The former pamphlet This Is WCAT was rewritten 
to reflect the provisions of the new legislation and is now called Appealing Workplace 
Insurance Decisions. It is a plain language introduction to the Tribunal. The Practice 
Directions were revised to incorporate the new legislation. 

Online Database 

The Tribunal entered into a contract with QL Systems Ltd. which will result in the 
creation of a database on QL that includes the full text of Tribunal decisions. Before 
making the database available to subscribers, QL is developing processes to 
accommodate all of the Tribunal's existing decisions, back to 1985. 

Summaries 

In 1997, the Publications Department summarized approximately 1,800 Tribunal 
decisions. 



STATISTICAL SUMMARY 



This part of the Annual Report provides a detailed summary of the Tribunal's 
productivity and caseload trends. The summary begins with an accounting of the 
numbers and types of cases received at the Tribunal. This is followed by an accounting 
of the numbers and types of case dispositions. A third section details the year-end 



32 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



caseload (the difference between the cumulative volume of cases received to December 
31, 1997 and the cumulative volume of cases disposed of as at December 31, 1997). The 
fourth section provides descriptive and comparative analyses of the key events which 
took place throughout the processing of these cases. 



Cases Received 

The breakdown of incoming cases is presented by year and by appeal type in 
Figure 1 (p. 36). In 1997, the Tribunal received 5,107 cases. This caseload intake 
represented the highest level ever achieved and the seventh consecutive annual increase. 
The 1997 intake level was 42 per cent higher than the 1996 level and 118 per cent higher 
than the 1995 level. And in comparison to the 1990 intake, this 1997 level represented a 
233 per cent increase. 

An examination of the Tribunal's core component of caseload (i.e., the "entitlement" 
appeal group, where the workload per case is most extensive) reveals even greater 
increases. Since 1990, the number of cases received in this principal category increased 
by 425 per cent (from 841 cases in 1990 to 4,419 in 1997) and the proportion of 
entitlement cases grew from 55 per cent of the total caseload in 1990 to nearly 
87 per cent of the total caseload in 1997. 



Case Dispositions 

In 1997, the Tribunal disposed of 3,070 cases (Figure 2, p. 37). This number 
represented the highest disposition total and the third consecutive annual productivity 
increase. The 1997 dispositions total was 22 per cent higher than the 1996 total and 
43 per cent higher than the 1995 total. (And in comparison to the 1990 total, it 
represented a 92 per cent increase.) 

A breakdown of the dispositions by processing stage (Figure 3, p. 38) shows that 
40 per cent were disposed of before scheduling. Another 10 per cent were disposed of 
after having been sent for scheduling but before being heard and the remaining cases 
(50 per cent) were disposed of after undergoing Tribunal hearing processes. 

Figure 4 (p. 39) provides information regarding the overall completion times for cases 
disposed of in 1997. The distribution of case completion times shows that 31 per cent were 
disposed of within 6 months of their date of application. Twenty-two per cent were 
disposed of between 6 and 12 months after their applications and 28 per cent were 
disposed of between 12 and 18 months after their application dates. The remaining 
19 per cent required more than 18 months to arrive at their dispositions. The median 



33 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



overall disposition interval (which included the waiting list and all other waiting intervals 
as well as weekends and statutory holidays) was 11 months for cases disposed of in 1997. 



Remaining Inventory 

In Figure 5 (p. 40) we provide an historical account of the Tribunal's caseload 
inventory, where "inventory" is used to denote the volume of cases that remained to be 
disposed of on December 31, 1997. 

As the figure indicates, 1997 was the sixth consecutive year of inventory 
accumulation. This inventory accrual is explained by the fact that the Tribunal's major 
productivity gains (92 per cent since 1990) were surpassed by even greater increases in 
the volumes of appeal applications (233 per cent since 1990). 

By December 31, 1997, the Tribunal's total inventory had grown to 5,557 cases. A 
break do wn of the inventory by processing stage is provided in Figure 6 (p. 41). 



Comparative Statistics for 1997 Hearings and Decision 
Productivity 

In 1997, the Tribunal again posted record high production levels for all hearing and 
decision-writing processes. (Please refer to Figure 7, p. 41.) Compared with 1996, the 
Tribunal arranged 18 per cent more hearings, conducted 32 per cent more hearings, and 
issued 19 per cent more decisions. (When compared with the 1990 production, the 1997 
figures were 104, 80, and 53 per cent higher, respectively.) 

In total there were 2,066 hearings during 1997, and 1,734 decisions were issued. 
Most of the decisions represented final rulings (1,435). As well, there were interim 
decisions (219) and rulings on reconsideration matters (80) (Figure 8, p. 42). 

The hearings most commonly took the form of formal, oral proceedings. 
(Seventy-eight per cent were oral hearings, 2 per cent were accounted for by panel 
caucuses and 20 per cent were panel reviews of the written records.) 

For cases that received decisions in 1997, the party correspondence data indicates a 
preference for representation by consultants. Of the appeals launched by employers, 
47 per cent were represented by consultants. Lawyers represented the employers 

31 per cent of the time, company personnel 16 per cent of the time, and the Office of the 
Employer Adviser 6 per cent of the time. Of the appeals launched by workers, 

32 per cent were represented by consultants. The Office of the Worker Adviser was the 
type of representation given in 22 per cent of these worker appeals. Lawyers and legal 



34 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



agencies accounted for the worker representation 21 per cent of the time, and union 
representatives 12 per cent of the time. Workers were unrepresented or self/ family 
represented 10 per cent of the time. They chose other miscellaneous (non-categorized) 
types approximately 3 per cent of the time and MPPs less than 1 per cent of the time. 



FINANCIAL MATTERS 



A Statement of Expenditures and Variances for the year ended December 31, 1997, 
(Figure 9, p. 43) is included in this report. 

The accounting firm of Deloitte & Touche has completed a financial audit on the 
Tribunal's financial statements for the periods ending December 31, 1996, and 
December 31, 1997. The audit reports are included in this report as Appendix B. 



35 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 1 

Annual Breakdown of Incoming Cases 





1992 


1993 


1994 


1995 


1996 


1997 


INPUT BY TYPE 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. (%) 


Leave 


35 


1.9 


13 


0.6 


17 


0.8 


17 


i 


12 


0.3 


17 0.3 


Right to Sue 


124 


6.9 


113 


5.2 


49 


2.2 


45 


2 


49 


1.4 


46 0.9 


Medical Exam 


76 


4.2 


49 


2.3 


41 


1.9 


26 


2 


23 


0.6 


25 0.5 


Access 


370 


20.5 


5J1 


23.7 


506 


23.0 


467 


23 


450 


12.5 


330 L5 


Special Section 


605 


33.5 


686 


31.9 


613 


27.9 


555 


28 


534 


14.8 


418 8.2 


Pension 


58 


3.2 


84 


3.9 


32 


1.5 


12 


1 


33 


0.9 


35 0.7 


N.E.L/F.E.L * 


3 


0.2 


13 


0.6 


34 


1.5 


66 


2 


257 


7.1 


251 4.9 


Commutation 


26 


1.4 


36 


1.7 


35 


1.6 


33 


2 


42 


1.2 


48 0.9 


Employer Assessment 


25 


1.4 


26 


1.2 


58 


2.6 


78 


3 


170 


4.7 


890 17.4 


Entitlement 


816 


45.2 


988 


45.9 


1099 


49.9 


1254 


50 


2133 


59.2 


3048 59.7 


Reinstatement 


39 


2.2 


49 


2.3 


56 


2.5 


63 


3 


32 


0.9 


40 0.8 


Vocational Rehabilitation ** 


11 


U 


72 


13 


80 


31 


79 


4 


111 


11 


107 2J. 


Entitlement-related 


986 


54.6 


1268 


58.9 


1394 


63.3 


1585 


63 


2788 


77.4 


2819 86.5 


Judicial Review 


7 


0.4 


9 


0.4 


8 


0.4 


5 





5 


0.1 


3 0.1 


Ombudsman Request 


44 


2.4 


50 


2.3 


35 


1.6 


50 


2 


49 


1.4 


36 0.7 


Reconsideration 


61 


3.4 


63 


2.9 


74 


3.4 


95 


3 


130 


3.6 


156 3.1 


Clarification 





M 





0.0 





M 








0_ 


g_j) 


M 


Post-decision 


112 


6.2 


122 


5.7 


117 


5.3 


150 


6.4 


184 


5.1 


195 3.8 


No Jurisdiction 


103 


5.7 


77 


3.6 


77 


3.5 


48 


2.1 


98 


2.7 


75 1.5 


TOTAL 


1806 




2153 




2201 




2338 




3604 




5107 


* NOTE: This category represents 


appea 


s related to non-economic loss and future 


i economic loss pensior 


criteria 


introduced by Bill 1 62. 
























** NOTE: This category represents appeals related to the increased Vocational Rehabilitation requirements introduced by 


Bill 162. 

























36 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 2 

Annual Breakdown of Cases Disposed 





1992 


1993 


1994 


1995 


1996 


1997 


OUTPUT BY TYPE 


No. 


(%) 


No 


(%) 


No. (%) 


No. 


(%) 


No. 


(%) 


No. (%) 


Leave 


29 


1.7 


31 


1.7 


15 0.8 


15 


0.7 


16 


0.6 


11 0.4 


Right to Sue 


113 


6.8 


101 


5.4 


84 4.7 


57 


2.7 


49 


2.0 


74 2.4 


Medical Exam 


70 


4.2 


54 


2.9 


40 2.2 


29 


1.4 


26 


1.0 


24 0.8 


Access 


389 


23.4 


522 


28.0 


499 27.8 


475 


22.2 


469 


18.7 


359 11.7 


Special Section 


601 


36.1 


708 


38.3 


638 35.6 


576 


26.9 


560 


22.3 


468 15.2 


Pension 


50 


3.0 


63 


3.4 


49 2.7 


54 


2.5 


28 


1.1 


26 0.8 


N.E.L7F.E.L. * 


1 


0.1 


3 


0.2 


12 0.7 


31 


1.4 


58 


2.3 


171 5.6 


Commutation 


10 


0.6 


26 


1.4 


34 1.9 


29 


1.4 


41 


1.6 


31 1.0 


Employer Assessment 


24 


1.4 


18 


1.0 


22 1.2 


41 


1.9 


85 


3.4 


212 6.9 


Entitlement 


729 


43.8 


794 


42.6 


766 42.7 


1112 


51.9 


1307 


52.0 


1742 56.7 


Reinstatement 


31 


1.9 


34 


1.8 


28 1.6 


57 


2.7 


56 


2.2 


45 1.5 


Vocational Rehabilitation ** 


5 


13 


25 


Li 


52 19 


65 


10 


83 


13 


102 13 


Entitlement-related 


850 


51.1 


963 


51.6 


963 53.7 


1389 


64.8 


1658 


66.0 


2329 75.9 


Judicial Review 


4 


0.2 


15 


0.8 


3 0.2 


7 


0.3 


6 


0.2 


6 0.2 


Ombudsman 


53 


3.2 


42 


2.3 


42 2.3 


42 


2.0 


52 


2.1 


46 1.5 


Reconsideration 


67 


4.0 


61 


3.3 


63 3.5 


85 


4.0 


125 


5.0 


114 3.7 


Clarification 





0.0 





0.0 


M 





0.0 





0.0 


o.o 


Post-decision 


124 


7.5 


118 


6.3 


108 6.0 


134 


6.3 


183 


7.3 


166 5.4 


No Jurisdiction 


89 


5.3 


76 


4.1 


83 4.6 


43 


2.0 


111 


4.4 


107 3.5 


TOTAL 


1664 




1865 




1792 


2142 




2512 




3070 


* NOTE: This category represents appeals related to the 


non-economic loss and future 


sconomic loss pension criteria 


introduced by Bill 162. 






















** NOTE: This category represents appeals 


related to the increased Vocational Rehabilitation requirements introduced by 


Bill 162. 























37 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 3 

Cases Disposed Of in 1997 

(by Processing Stage and by Appeal Category) 



Before Scheduling 

Withdrawn by Appellant 
Settled at Tribunal 
Made Inactive or Abandoned 
Found Non-jurisdictional 
Other 
Subtotal 

Before Hearing 

Withdrawn by Appellant 
Settled at Tribunal 
Made Inactive or Abandoned 
Other 
Subtotal 

After Hearing 

Withdrawn by Appellant without Decision 
Made Inactive or Abandoned with Decision 
Disposed Of following Tribunal Decision 
Subtotal 

TOTAL 



Medical Exam 


Right 


Leave & 


Post- 


ALL 


& Access 


to Sue 


Entitlement 


decision 


TYPES 


304 


3 


217 


1 


525 


2 











2 


1 


10 


547 


1 


559 








66 





66 


22 





33 


21 


76 


329 


13 


863 


23 


1228 


8 


10 


147 


3 


168 





5 





1 


6 





10 


63 


22 


95 











32 


32 


8 


25 


210 


58 


301 








12 





12 


I 





4 


1 


5 


46 


36 


1358 


84 


1524 


46 


36 


1374 


85 


1541 


383 


74 


2447 


166 


3070 



38 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 4 

Distribution of Completion Times 







Percentage of Cases Disposed Of 






Within 


Between 6 


Between 1 2 


More than 




6 Months 


and 12 Months 


and 18 Months 


18 Months 


Medical Exam and Access 


92% 


7% 


<1% 


<1% 


Right to Sue and Entitlement* 


18% 


24% 


34% 


24% 


Post-decision Issues 


41% 


37% 


16% 


7% 


Jurisdictional Issues 


98% 


2% 


0% 


0% 


ALL CASES 


31% 


22% 


28% 


19% 


* Note: The "Right to Sue and Entitlement" 


category also includes leave applications, reinstatement appeals. 


vocational rehabilitation issues 


employer 


assessment appeals, pensior 


i and wage loss 


appeals and pension 


commutation issues. 











39 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 5 

Cases Received, Case Dispositions and 

Remaining Case Inventory 



6000 



5000 



4000 



3000 



2000 



1000 





















































































































* 








































* 








































* 


















■ 




























1 

1 


* 


— 




- 


















* 















s 




s „ 




* 




^ 
































i 


■ 




























































/ 



































































































































1 






























































4 






























































i 




























































/ 




























































/ 






























































I M 




1 1 




1 1 




1 — i — 




| 




1 — 1_ 






1 — 1 — 1 




1 — 1 — 




1 — 1 — 1 






_( — 






-1 — 




1 — 1 — 




1 — 1 — 





1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 



RECEIVED DISPOSED INVENTORY 

TOTAL TOTAL (Remaining Cases) 



40 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 6 

Distribution of Cases in Inventory 

(Cases not Disposed Of as at December 31, 1997) 







Special Section 
and Appeal Cases 


Post-decision Cases 

Reconsideration Ombudsman Judicial Review 


PRE-PROCESSING 

Cases on Waiting List 




2274 


n/a 


n/a 


n/a 


CASES IN PROCESS 

Case Record Preparation 
Pre-scheduling, TCO* or OCC** Preparation 
Scheduling (or Rescheduling) 
Awaiting Hearing at WSIAT 
Post-hearing, TCO* or OCC** Follow-up 
WSIAT Decision-writing 
Closing Process 
Subtotal 


441 
513 
592 
546 
333 
643 
49 
3117 


n/a 

79 

4 



9 

24 

9 

125 


n/a 
36 
n/a 
n/a 

1 
n/a 


37 


n/a 

3 

n/a 

n/a 

n/a 

n/a 

1 

1 


TOTAL (All Cases) 




5391 


125 


37 


4 


* TCO refers to the Tribunal Counsel Office. 

** OCC refers to the Office of the Counsel to the Chair. 









FIGURE 7 

Scheduling, Hearings and Decisions 





1993 


1994 


1995 


1996 


1997 


Scheduling Dates Arranged 


1580 


1697 


1591 


2032 


2403 


Hearings Conducted 


1239 


1415 


1332 


1563 


2066 


Cases Heard 


1120 


1299 


1223 


1449 


1942 


Decisions Issued 


907 


1031 


1403 


1460 


1734 


Cases Disposed Of by Decision 


839 


862 


1148 


1302 


1524 



41 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 8 

Decisions Issued in 1997 



Interim Decisions 219 




Reconsideration Decisions* 80 



Final Decisions 1,435 



Reconsideration decisions include rulings at the threshold level as well as rulings 
at the merits level. 



42 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



FIGURE 9 

Statement of Expenditures and Variances 



Workers' Compensation Appeals 


Tribunal 








1997 Statement of Expenditures and Variances 








as at December 31, 1997 (In $000' s) 












1997 


1997 


Variance 




Budget 


Actual 


$ 


% 


Salaries & Wages 


7,721.0 


7,217.0 


504.0 


6.53 


Employee Benefits 


1,342.0 


1,326.0 


16.0 


1.19 


Transportation & Communication 


529.0 


626.0 


(97.0) 


(18.34) 


Services 


3,121.0 


3,773.0 


(652.0) 


(20.89) 


Supplies & Equipment 


300.0 


297.0 


(21.0) 


7.00 


TOTAL OPERATING EXPENDITURES 


13,013.0 


13,221.0 


(208.0) 


(1.60) 


Capital Expenditures 


160.0 


6.0 


154.0 


96.25 


TOTAL EXPENDITURES 


13.173.0 


13,227.0 


(54.0) 


(0.41) 



43 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



APPENDIX A 



VICE-CHAIRS AND MEMBERS IN 1997 



This is a list of Vice-Chairs and Members whose Order-in-Council appointments 
were active at the end of the reporting period. 



Full-time 
Chair 

Strachan, Ian J. 

Vice-Chairs 

Ballam, Dianne McCombie, Nick 

Bigras, Jean Guy Mclntosh-Janis, Faye 

Dechert, Ken Moore, John 

Keil, Martha Sandomirsky, Janice 

Kroeker, Larry Sutherland, Sara 

Members Representative of Workers 

Crocker, James Robillard, Maurice 

Jackson, Faith Thompson, Patti 

Lebert, Raymond 

Members Representative of Employers 

Barbeau, Pauline Meslin, Martin 

Chapman, Stanley Nipshagen, Gerry 

Copeland, Susan 



45 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



Part-time 



Vice-Chairs 



Alexander, Judith 
Cook, Brian 
Farrer, Jennifer Bradley 
Faubert, Marsha 
Flanagan, William 
Frazee, Catherine 
Kenny, Maureen 
Libman, Peter 

Members Representative of Workers 



Marafioti, Victor 
McGrath, Joy 
Mole, Ellen 
Newman, Elaine 
Onen, Zeynep 
Renault, Audrey 
Robeson, Virginia 
Signoroni, Antonio 



Anderson, James 
Beattie, David 
Besner, Diane 
Felice, Douglas 



Ferrari, Mary 
Klym, Peter 
Rao, Fortunato 
Timms, David 



Members Representative of Employers 



Apsey, Robert 
Donaldson, Joseph 
Fay, Carole Ann 
Howes, Gerald 



Robb, C. James 
Seguin, Jacques 
Shuel, Robert 
Young, Barbara 



VICE-CHAIRS AND MEMBERS - 
REAPPOINTMENTS 



Apsey, Robert 
Barbeau, Pauline 
Beattie, David 
Bigras, Jean Guy 
Chapman, Stanley 
Cook, Brian 
Copeland, Susan 
Crocker, James 
Donaldson, Joseph 
Faubert, Marsha 
Fay, Carole Ann 
Flanagan, William 



December 11, 1997 
July 1, 1997 
December 11, 1997 
July 1, 1997 
July 1, 1997 
September 6, 1997 
April 6, 1997 
August 1, 1997 
August 4, 1997 
July 1, 1997 
August 4, 1997 
June 1, 1997 



46 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



Frazee, Catherine 
Jackson, Faith 
Keil, Martha 
Kenny, Maureen 
Lebert, Raymond 
Marafioti, Victor 
McCombie, Nick 
McGrath, Joy 
Meslin, Martin 
Moore, John 
Onen, Zeynep 
Rao, Fortunato 
Robb, C. James 
Robeson, Virginia 
Robillard, Maurice 
Sandomirsky, Janice 
Signoroni, Antonio 
Strachan, Ian J. 
Sutherland, Sara 
Thompson, Patti 



February 1, 1997 
July 1, 1997 
October 8, 1997 
July 1, 1997 
June 1, 1997 
July 1, 1997 
July 1, 1997 
July 1, 1997 
August 1, 1997 
May 1, 1997 
October 1, 1997 
February 11, 1997 
July 1, 1997 
July 1, 1997 
July 1, 1997 
July 1, 1997 
October 1, 1997 
July 1, 1997 
September 6, 1997 
October 10, 1997 



NEW APPOINTMENTS DURING 1997 



Dianne J. Ballam 

Ms. Ballam received her law degree in 1989 and was called to the bar in 1991. 
Her private practice, in Lindsay, Ontario, focused on criminal law. She also has a 
degree in social services, and prior to attending law school, she worked in the social 
services field as a counsellor and field worker. 

Kenneth W. Dechert 

Mr. Dechert is a lawyer who has been in private practice since 1982, where he 
dealt with criminal, family, real estate, corporate and commercial law. 

Lawrence Kroeker 

Mr. Kroeker is a lawyer called to the bar in 1973. He has been active in 
commercial, industrial and residential development in the Niagara area. In addition 
to his law degree, he has a Masters Degree in Business Administration from 
McMaster University. 



47 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



SENIOR STAFF 



The following is a list of the senior staff who were employed at the Tribunal during 
the reporting year. 



W. Doug Jago* 
Linda Moskovits 
Beverley Pavuls 
Carole Prest 
Eleanor Smith 
Peter Taylor 



Director and General Manager 
Chief Information Officer 
Chief Administration Officer 
Counsel to the Tribunal Chair 
Tribunal General Counsel 
Manager, Financial Administration 



MEDICAL COUNSELLORS 



The following is a list of the Tribunal's Medical Counsellors. 



Dr. John D. Atcheson 
Dr. Douglas P. Bryce 
Dr. Ross Fleming 
Dr. W. Robert Harris 
Dr. Robert L. MacMillan 
Dr. John S. Speakman 
Dr. Neil Walters 



Psychiatry 
Otolaryngology 
Neurosurgery 
Orthopaedic Surgery 
Internal Medicine 
Ophthalmology 
General Surgery 



Mr. Jago was appointed Director and General Manager as of July 1, 1997. Prior to that date, he 
had been a full-time Member Representative of Employers since 1985. 



48 



Workplace Safety and Insurance Appeals Tribunal ... Annual Report 1997 



APPENDIX B 



WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1996 

Auditors' Report 

To the Workplace Safety and Insurance Appeals Tribunal 

We have audited the balance sheet of the Workplace Safety and Insurance Appeals 
Tribunal as at December 31, 1996 and the statement of operations for the year then 
ended. These financial statements are the responsibility of the Tribunal's management. 
Our responsibility is to express an opinion on these financial statements based on our 
audit. 

We conducted our audit in accordance with generally accepted auditing standards. 
Those standards require that we plan and perform an audit to obtain reasonable 
assurance whether the financial statements are free of material misstatement. An audit 
includes examining, on a test basis, evidence supporting the amounts and disclosures in 
the financial statements. An audit also includes assessing the accounting principles used 
and significant estimates made by management, as well as evaluating the overall 
financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, the 
financial position of the Workplace Safety and Insurance Appeals Tribunal as at 
December 31, 1996 and the results of its operations for the year then ended in 
accordance with generally accepted accounting principles. 

Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
May 29, 1998 



49 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



BALANCE SHEET 
December 31, 1996 



1996 



1995 



ASSETS 

Cash 

Receivable from Workplace Safety and 

Insurance Board (Schedule 2) 
Salaries and wages recoverable (Note 3) 
Advances 



LIABILITIES 

Accounts payable and accrued liabilities 
Operating advance from Workplace 
Safety and Insurance Board (Note 4) 



$ 


1,641,200 


$ 


646,500 




1,885,000 




2,050,500 




148,700 




154,000 




15,100 




11,000 


$ 


3,690,000 


$ 


2,862,000 


$ 


2,290,000 


$ 


1,462,000 




1,400,000 




1,400,000 


$ 


3,690,000 


$ 


2,862,000 



Approved on behalf of the Workplace Safety and Insurance Appeals Tribunal 
I.J. Strachan, Chairman 



50 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



STATEMENT OF OPERATIONS 
Year ended December 31, 1996 

FUNDING REVENUE (Schedule 1) 

OPERATING EXPENSES 
Salaries and wages 
Employee benefits 
Transportation and communication 
Services 

Supplies and equipment 
Social contract commitment 



1996 


1995 


$ 11,885,200 


$ 12,257,100 


6,797,000 


6,757,300 


1,131,000 


1,182,000 


505,700 


497,600 


3,150,900 


3,228,900 


194,900 


229,300 


81,900 


327,700 



TOTAL OPERATING EXPENSES 11,861,400 12,222,800 

CAPITAL EXPENSES 45,700 81,600 



TOTAL EXPENSES 11,907,100 12,304,400 

EXCESS OF EXPENSES OVER REVENUE 

BEFORE BANK INTEREST INCOME (51,900) (47,300) 

BANK INTEREST INCOME 51,900 47,300 

RESULTS FROM OPERATIONS $ $ 



51 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1996 

1. GENERAL 

On January 1, 1998, the Tribunal changed its name from Workers' Compensation Appeals 
Tribunal to Workplace Safety and Insurance Appeals Tribunal pursuant to the Workplace 
Safety and Insurance Act 1997. The organization was originally created by the Workers' 
Compensation Amendment Act, S.0. 1984, Chapter 58 - section 82, which came into force 
on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers in connection with decisions, 
orders or rulings of the Workplace Safety and Insurance Board (formerly Workers' 
Compensation Board), and any matters or issues expressly conferred upon the Tribunal by 
the Act. 

2. SIGNIFICANT ACCOUNTING POLICIES 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles. 

Revenue and expenses: Revenue and expenses are recognized on an accrual basis. 

Capital and expenditures: All expenditures of a capital nature are expensed in the year of 
acquisition. 

3. SALARIES AND WAGES RECOVERABLE 

Certain employees are on secondment with the Ministry of Community and Social Services 
of the Government of Ontario and the Society of Ontario Adjudicators and Regulators and 
their remuneration is recoverable. 

4. OPERATING ADVANCE FROM WORKPLACE SAFETY AND FNSURANCE BOARD 

The operating advance is interest-free with no specific terms of payment. 

5. STATEMENT OF CHANGES IN FINANCIAL POSITION 

A statement of changes in financial position has not been presented as the information 
which would be included therein is determinable from the statements provided. 

6. COMPARATIVE FIGURES 

Certain of the comparative figures have been reclassified to conform to the current year's 
presentation. 



52 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



SCHEDULE OF FUNDING REVENUE 
Year ended December 31, 1996 



TOTAL OPERATING EXPENSES 

CAPITAL EXPENSES 
TOTAL EXPENSES 

LESS: BANK INTEREST INCOME 
FUNDING REVENUE 





Schedule 1 


1996 


1995 


$ 11,861,400 


$ 12,222,800 


45,700 


81,600 


11,907,100 


12,304,400 


51,900 


47,300 


$ 11,855,200 


$ 12,257,100 



SCHEDULE OF RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD 
Year ended December 31, 1996 



FUNDING REVENUE (Schedule 1) 

REIMBURSEMENT FROM WORKPLACE 
SAFETY AND INSURANCE BOARD 

CHANGE IN RECEIVABLE FROM 
WORKPLACE SAFETY AND 
INSURANCE BOARD 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
BEGINNING OF YEAR 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
END OF YEAR 





Schedule 2 


1996 


1995 


$ 11,855,200 


$ 12,257,100 


12,020,700 


13,257,900 



(165,500) 



2,050,500 



$ 1,885,000 



(1,000,800) 



3,051,300 



$ 2,050,500 



53 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31 , 1997 

Auditors' Report 

To the Workplace Safety and Insurance Appeals Tribunal 

We have audited the balance sheet of the Workplace Safety and Insurance Appeals 
Tribunal as at December 31, 1997 and the statement of operations for the year then 
ended. These financial statements are the responsibility of the Tribunal's management. 
Our responsibility is to express an opinion on these financial statements based on our 
audit. 

We conducted our audit in accordance with generally accepted auditing standards. 
Those standards require that we plan and perform an audit to obtain reasonable 
assurance whether the financial statements are free of material misstatement. An audit 
includes examining, on a test basis, evidence supporting the amounts and disclosures in 
the financial statements. An audit also includes assessing the accounting principles used 
and significant estimates made by management, as well as evaluating the overall 
financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, the 
financial position of the Workplace Safety and Insurance Appeals Tribunal as at 
December 31, 1997 and the results of its operations for the year then ended in 
accordance with generally accepted accounting principles. 

Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
May 29, 1998 



54 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



BALANCE SHEET 
December 31, 1997 



ASSETS 



LIABILITIES 

Accounts payable and accrued liabilities 
Operating advance from Workplace 
Safety and Insurance Board (Note 4) 



1997 



3,603,800 

$ 2,203,800 
1,400,000 

$ 3,603,800 



1996 



Cash 


$ 1,425,000 


$ 1,641,200 


Receivable from Workplace Safety and 






Insurance Board (Schedule 2) 


2,168,500 


1,885,000 


Salaries and wages recoverable (Note 3) 


- 


148,700 


Advances 


10,300 


15,100 



$ 3,690,000 

$ 2,290,000 
1,400,000 

$ 3,690,000 



Approved on behalf of the Workplace Safety and Insurance Appeals Tribunal 
I.J. Strachan, Chairman 



55 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



STATEMENT OF OPERATIONS 
Year ended December 31, 1997 

FUNDING REVENUE (Schedule 1) 

OPERATING EXPENSES 
Salaries and wages 
Employee benefits 
Transportation and communication 
Services 

Supplies and equipment 
Social contract commitment 



1997 


1996 


$ 13,111,000 


$ 11,885,200 


7,217,100 


6,797,000 


1,325,800 


1,131,000 


625,800 


505,700 


3,690,400 


3,150,900 


279,000 


194,900 


- 


81,900 



TOTAL OPERATING EXPENSES 13,138,100 11,861,400 

CAPITAL EXPENSES 6,000 45,700 



TOTAL EXPENSES 13,144,100 11,907,100 

EXCESS OF EXPENSES OVER REVENUE 

BEFORE BANK INTEREST INCOME (33,100) (51,900) 

BANK INTEREST INCOME 33,100 51,900 

RESULTS FROM OPERATIONS $ $ - 



56 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1997 



NOTES TO THE FINANCIAL STATEMENTS 
December 31 , 1997 

1. GENERAL 

On January 1, 1998, the Tribunal changed its name from Workers' Compensation 
Appeals Tribunal to Workplace Safety and Insurance Appeals Tribunal pursuant to the 
Workplace Safety and Insurance Act 1997. The organization was originally created by 
the Workers' Compensation Amendment Act, S.0. 1984, Chapter 58 - section 82, which 
came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers in connection with decisions, 
orders or rulings of the Workplace Safety and Insurance Board (formerly Workers' 
Compensation Board), and any matters or issues expressly conferred upon the Tribunal 
by the Act. 

2. SIGNIFICANT ACCOUNTING POLICIES 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles. 

Revenue and expenses: Revenue and expenses are recognized on an accrual basis. 

Capital and expenditures: All expenditures of a capital nature are expensed in the year of 
acquisition. 

3. SALARIES AND WAGES RECOVERABLE 

Salaries and wages recoverable consits of amounts recoverable from the Ministry of 
Community and Social Services of the Government of Ontario and the Society of 
Ontario Adjudicators and Regulators for employees who were seconded to those 
respective organizations. 

4. OPERATING ADVANCE FROM WORKPLACE SAFETY AND INSURANCE BOARD 

The operating advance is interest-free with no specific terms of payment. 

5. STATEMENT OF CHANGES IN FINANCIAL POSITION 

A statement of changes in financial position has not been presented as the information 
which would be included therein determineable to the statements provided. 



57 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1997 



SCHEDULE OF FUNDING REVENUE 
Year ended December 31, 1997 



TOTAL OPERATING EXPENSES 

CAPITAL EXPENSES 
TOTAL EXPENSES 

LESS: BANK INTEREST INCOME 
FUNDING REVENUE 





Schedule 1 


1997 


1996 


$ 13,138,100 


$ 11,861,400 


6,000 


45,700 


13,144,100 


11,907,100 


33,100 


51,900 


$ 13,111,000 


$ 11,855,200 



SCHEDULE OF RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD 
Year ended December 31, 1997 



FUNDING REVENUE (Schedule 1) 

REIMBURSEMENT FROM WORKPLACE 
SAFETY AND INSURANCE BOARD 

CHANGE IN RECEIVABLE FROM 
WORKPLACE SAFETY AND 
INSURANCE BOARD 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
BEGINNING OF YEAR 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
END OF YEAR 





Schedule 2 


1997 


1996 


$ 13,111,000 


$ 11,855,200 


12,827,500 


12,020,700 



283,500 



1,885,000 



$ 2,168,500 



(165,500) 



2,050,500 



$ 1,885,000 



58